Date: 20090304
Docket: IMM-3069-08
Citation: 2009 FC 236
Ottawa, Ontario, March 4, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
RONALD
LIONEL
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by an Immigration Officer
dated June 25, 2008, denying the applicant’s application for an exemption on
humanitarian and compassionate grounds (H&C).
FACTS
[2]
The
applicant is a citizen of Guyana. He came to Canada on August 18, 1998 on a
six-month visa. He then made a refugee claim, which was denied in December
2001.
[3]
The
applicant has four siblings in Canada. The applicant also has
a spouse and child in Guyana, although he has all severed ties with Guyana and is not
aware of his family’s location. The applicant has been employed as a
Shipper/Receiver with Eagle Global Logistics in Mississauga since
February 2000.
Decision under review
[4]
The
Immigration Officer made note of the applicant’s family members in Canada, but found that
the applicant had not established that he would suffer unusual, undeserved or
disproportionate hardship if he were removed to Guyana. The
officer held in his decision, at page 10 of the Application Record:
The applicant states that his three (3)
siblings reside in Canada and the submissions indicate
that they are willing to support him. I note that the applicant also has a
spouse and child in Guyana although their current
location is unknown. The applicant’s submission includes the statement that he
has cut ties with Guyana, however the applicant was fully aware of the fact
that he was not a permanent resident of Canada. While it would pose a degree of
hardship, I am not satisfied that the separation of the applicant from his
family in Canada would pose unusual and
undeserved or disproportionate hardship to justify an exemption under
humanitarian and compassionate grounds.
[5]
The
officer also held that the applicant’s employment history in Canada, while
positive, did not warrant an H&C exemption.
The applicant has been employed with
Eagle Global Logistics since February 2000. However I note that he has been
under a removal order since June 29, 1999 and this removal order has been in
effect since December 17, 2001 when he was found not to be a Convention
Refugee, which the applicant would have been aware of. I note that the
applicant will be able to use his skills and experience to assist him in
seeking new employment if he were to leave Canada. I also note that the applicant would
be eligible to apply for permanent residence from outside of Canada through the Economic Class...
[6]
Finally,
the officer held that the applicant did not face any risk warranting an H&C
exemption.
I note that the applicant did refer to
the current situation in Guyana, however no reference has
been made to any specific risk that the applicant would face if he were to
return to Guyana.
[7]
For
these reasons, the Immigration Officer rejected the applicant’s application.
ISSUES
[8]
The
applicant has raised two issues in this case:
1.
Did the
Immigration Officer err in the exercise of his or her discretion by ignoring
evidence, misconstruing evidence, and fettering his or her discretion?
2.
Was the
applicant denied natural justice?
STANDARD OF REVIEW
[9]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[10]
In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada established
that reasonableness is the appropriate standard of review for H&C
application decisions. The Court stated at paragraph 62:
¶ 62 …
I conclude that considerable deference should be accorded to immigration
officers exercising the powers conferred by the legislation, given the
fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision-maker is the Minister, and the
considerable discretion evidenced by the statutory language. Yet the absence of
a privative clause, the explicit contemplation of judicial review by the
Federal Court – Trial Division and the Federal Court of Appeal in certain
circumstances, and the individual rather than polycentric nature of the
decision, also suggest that the standard should not be as deferential as
“patent unreasonableness”. I conclude, weighing all these factors, that the
appropriate standard of review is reasonableness simpliciter.
[Emphasis added]
[11]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir at paragraph 47).
ANALYSIS
[12]
Although
the applicant raised two separate issues in this case, his submissions do not
distinguish between these issues. Rather, the submissions contend that the
officer erred in the following ways:
1.
the
immigration officer should have notified the applicant about his concerns with
the application and given the applicant a chance to provide additional
information;
2.
the
immigration officer did not satisfactorily assess the criteria in the
Immigration Manual Guidelines in concluding that the applicant’s establishment in
Canada was not such as to create
undeserved, disproportionate or unusual hardship if removed;
3.
the
immigration officer erred in finding that the applicant would be eligible to
apply for permanent residence from abroad;
4.
the
immigration officer did not provide complete and clear reasons for his or her
decision; and
5.
the
immigration officer fettered his discretion by failing to refer the applicant’s
application to the PRRA unit.
[13]
The
first reason listed above pertains to natural justice, while the remaining
reasons relate to the officer’s exercise of his discretion and the
reasonableness of the decision. The Court will therefore first consider
whether the applicant was denied natural justice and then turn to the
reasonableness of the officer’s exercise of his discretion.
Issue No. 1: Was the
applicant denied natural justice?
[14]
The
applicant states that the officer’s reasons evinced “concerns about the
separation of family in Canada” and that “the immigration officer was
concerned about the Applicant not providing sufficient information about his
four children or the Applicant’s relationship with them.” (Applicant’s
Memorandum of Fact and Law, p. 54 of the Applicant’s Record). The applicant
therefore submits that the immigration officer should have notified the
applicant of these concerns and given the applicant an opportunity to provide a
response, and that the officer’s failure to do so constitutes a breach of his
duty of fairness to the applicant. The applicant relies on Bayoyo v. Canada (Minister of
Employment and Immigration), (1994) 89 F.T.R. 79, wherein Justice Rouleau
stated at paragraph 6:
…The principles of natural justice and
fairness require the Immigration Officer to convey to the applicant sufficient
information so as to enable him to know the reasons for the refusal and to
provide the applicant with an opportunity to respond to those reasons.
The applicants also rely on Justice Reid’s
decision in Parihar v. Canada (Minister of Employment
and Immigration), (1991) 50 F.T.R. 236, wherein she stated at paragraph 4:
…the decision is flawed because a breach
of the duty to act fairly occurred, - the applicants were not given an
opportunity to comment on the alleged inconsistencies…
[15]
In
this case, however, the officer’s reasons do not establish that the officer had
“concerns” or “doubts” about any information pertaining to the applicant’s
family in Canada or his estranged family in Guyana. The
officer merely stated:
The applicant states that his three (3)
siblings reside in Canada and the submissions indicate
that they are willing to support him. I note that the applicant also has a
spouse and child in Guyana although their current
location is unknown. The applicant’s submission includes the statement that he
has cut ties with Guyana, however the applicant was
fully aware of the fact that he was not a permanent resident of Canada. While it would pose a degree
of hardship, I am not satisfied that the separation of the applicant from his
family in Canada would pose unusual and
undeserved or disproportionate hardship to justify an exemption under
humanitarian and compassionate grounds
[16]
While
the applicant correctly notes that the officer misstated the number of siblings
the applicant has in Canada as three rather than four, this does not
substantially affect the officer’s reasons, namely that separation from his
siblings did not constitute undeserved, undue or disproportionate hardship.
With respect to the applicant’s family in Guyana, there is no indication that
the fact that the applicant has family in Guyana weighed
against the applicant. Rather, the decision merely indicates that the
applicant’s estrangement was not considered a positive factor weighing in
favour of the application because the applicant was always aware of the
possibility of removal. Unlike in the cases relied upon by the applicant, in
the case at bar, the officer did not rely on any alleged inconsistencies or
omissions in the application in denying the application.
[17]
There
is no general obligation to provide an applicant with an opportunity to respond
to the reasons for decision or make more fulsome submissions. The onus is on
the applicant to provide sufficient persuasive evidence in the application: Owusu
v. Canada (MCI), 2004
FCA 38, 318 N.R. 300; Liniewska v. Canada (MCI), 2006 FC 591,
152 A.C.W.S. (3d) 500. A duty to raise concerns with the applicant only arises
where there is some ambiguity that must be clarified or where the officer
relies upon extrinsic evidence. In Singh v. Canada (MCI) 2006 FC 315, 146
A.C.W.S. (3d) 707, Justice Russell stated at paragraphs 27-28:
27 Generally
speaking, the jurisprudence suggests that a duty to raise concerns with the
Applicant only arises where there is some ambiguity that needs to be clarified
or where the Officer relies upon extrinsic evidence. See, for example, Heer
at paras. 19-28; Bellido at para. 35; and Dodia v. Canada (Minister
of Citizenship and Immigration) 2003 FC 1107, [2003] F.C.J. No. 1397
(QL) at paras. 12-14.
28 The duty of procedural fairness
does not require an officer to notify an applicant as to why the evidence
provided is not sufficient to fulfil the statutory criteria. The onus is on an
applicant to provide that evidence… There was no real ambiguity in the evidence
presented and there was no reliance on extrinsic evidence. An officer is not
required to discuss shortcomings in the evidence before a decision is made and
to give an applicant an opportunity to rectify those shortcomings.
[18]
Similarly,
in the case at bar, there was no ambiguity or reliance on external evidence,
and thus the officer did not breach a duty of fairness to the applicant by
failing to provide the applicant with an opportunity to provide additional
information.
Issue
No. 2: Did the officer err in the exercise of his discretion by ignoring or
misconstruing evidence, or fettering his discretion, in denying the applicant’s
application?
[19]
The
applicant’s first submission under this issue is that the officer did not
properly assess the criteria in the Guidelines relating to establishment in
finding that the applicant’s establishment was such that the applicant would
face unusual, undeserved or disproportionate hardship if removed from Canada. The
applicant relies on Pramauntanyath v. Canada (Minister of
Citizenship and Immigration), where Justice Phelan held at paragraphs 16-17:
¶16 The Officer appears to have
given favourable consideration to the establishment of the restaurant business,
his social and economic integration, his Canadian experience, his volunteer
work, letters of recommendation and his establishment in Canada. Despite all
this, the Officer finds: “I am not satisfied that his business venture and
integration is compelling.”
¶17 Given the “reasonableness”
analysis quoted earlier, the Court cannot find the evidentiary foundation or
the logical process which supports the Officer’s conclusion.
[20]
However,
in that case, the applicant was a partner in a restaurant and an employer of
15-20 employees. The evidence was that the business could not carry on without
him and therefore his business partners would be adversely affected and his
employees would lose their jobs. None of this evidence had been mentioned by
the officer in his assessment of the applicant’s establishment. Here, there is
no omission of material facts, nor is there a similarly high degree of
establishment. The officer recognized the applicant’s employment history and that
he has family members in Canada. It was reasonable for the officer to
conclude that separation from siblings is not the hardship of a level
warranting an H&C exemption. Moreover, it was reasonable for the officer
to note that the applicant had obtained his employment after his refugee claim
had been refused, while under his current removal order. While the applicant
was legally entitled remain in Canada while pursuing his H&C application,
the elapsed time cannot be a basis for him to remain in Canada as a
permanent resident.
[21]
Second,
the applicant states that the officer “unfairly” stated that he would be
eligible to apply from abroad, as the applicant would not receive the necessary
points to meet the assessment criteria and could have demonstrated this to the
officer if he had been given a chance to respond. The respondent submits the
fact that an applicant may not qualify as a skilled worker is contemplated by
the legislation, is inherent in being asked to leave Canada after having lived
here for a period of time, and does not rise to the level of unusual or
undeserved hardship. The Court agrees. The officer’s statement that the
applicant could apply for permanent residence from outside Canada was not a
determinative factor in the reasons, nor did it imply that the applicant would
be successful.
[22]
Third,
the applicant submits that the reasons were not clear and complete. The basis
for this submission is an incomplete sentence in the officer’s reasons. At p.
10 of the Applicant’s Record, the officer states:
The applicant has been employed with
Eagle Global Logistics since February 2000. However I note that he has been
under a removal order since June 29, 1999 and this removal order has been in
effect since December 17, 2001 when he was found not to be a Convention
Refugee, which the applicant would have been aware of. I note that the
applicant will be able to use his skills and experience to assist him in
seeking new employment if he were to leave Canada. I also note that the applicant would
be eligible to apply for permanent residence from outside of Canada through the Economic Class.
While it would pose a degree of hardship, I am not satisfied that the applicant’s
[23]
The
final sentence in this paragraph remains incomplete. In Dunsmuir, supra,
the Supreme Court held that in order to be reasonable, the reasons for a
decision must be intelligible. Although one sentence is incomplete in the
reasons, the reasons are adequate in that they indicate the various factors
were considered and why the officer found them insufficient. The incomplete
sentence is insufficient basis for the Court to find the decision unreasonable
or disturb the immigration officer’s findings.
[24]
Finally,
the applicant submits that the immigration officer fettered his discretion by
taking on the role of a Pre-Removal Risk Officer in assessing the alleged risk
of the applicant returning to Guyana. The applicant made the submission
relating to risk in his H&C application, rather than a PRRA application.
However, the Immigration Manual IP5 Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds provides a procedure for
an officer to refer an H&C application to the PRRA unit when there is a
personal risk alleged.
[25]
In
this case, however, no personalized risk was alleged. There were only two
submissions relating to risk in the applicant’s H&C application. The
first, at p. 17 of the Applicant’s Record, states:
Moreover, given the current political
situation in Guyana and the tremendous rise in
incident s of sectarian violence and terrorism in that country, it will be very
difficult for our Client to return to that country in order to process his
Immigration documents at this time.
[26]
The
second statement relating to risk was at p. 28 of the Applicant’s Record,
wherein the applicant stated:
I also do not have a safe place [to]
reside in that country.
[27]
These
submissions do not provide any evidence of personalized risk to the applicant. There
was therefore no reason for the officer to refer the application to the PRRA
unit.
[28]
The
applicant has not submitted that there are any questions for certification.
The Court agrees.
[29]
For
these reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial
review is dismissed.
“Michael
A. Kelen”
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